joining me counselor at nyu school of law. glad you're here to talk about this. justin elaine kagan recused herself so that leaves us with eight justices. read the tea leaves. >> a 4-4 split the court goes to the lower court and the courtsided with a university of texas. a tie goes to the affirmative action program. so what we're looking for still is how justice kennedy is going to decide this case. that will determine whether it's a 4-4 decision or 5-3 decision against the university of texas. as usual he gave elliptic cal comments in both directions during the oral argument. so it's a little bit hard to call which way he's going to go. >> not a good chance the university of texas which is outright win. >> president kennedy has said there might be a program that passes muster. he's never approved affirmative action program. during the argument he said race counts for everything, right? that's actually a very bad sign for the university of texas because he's not like people being categorized solely on the basis of race. >> chief justice roberts was the surprise v